Rod Miller: The Trigger Law vs. The Wyoming Constitution

Columnist Rod Miller writes: "When the U.S. Supreme Court punted on abortion in its recent Roe decision, and dished this hot potato to the states, the ball landed squarely in Wyomings hands. And thats exactly where Wyomingites should want it."

Rod Miller

July 10, 20224 min read

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(Cowboy State Daily Staff)

When the U.S. Supreme Court punted on abortion in its recent Roe decision, and dished this hot potato to the states, the ball landed squarely in Wyoming’s hands. And that’s exactly where Wyomingites should want it.

We make our own decisions about ourselves here in The Big Empty, thank you very much.

The forward-thinking Wyoming Legislature read the political tea leaves to predict– or were convinced by outside political forces – that SCOTUS would indeed re-visit Roe during their current term, and Wyoming, like several other states, passed a “trigger law”.

HB92, which outlaws abortions in Wyoming with few exceptions, was passed by the legislature and signed by the governor during the last budget session.

The new pro-life statute must be certified by the Attorney General, and that process has already begun. Once certified, it will become statutorily illegal in the State of Wyoming for a woman to get an abortion. In fact, abortion will become a felony.

But the Wyoming Legislature, in its pro-life zeal, has painted themselves into a corner when it comes to the Wyoming Constitution.

Flash back to 2012 when Wyoming, incensed at the federal over-reach of the Affordable Care Act- with its compulsory participation and its death panels – wanted to jam it up Obama’s ol’ wazoo. So we passed an amendment to our Constitution guaranteeing Wyoming citizens the freedom to make their own health care decisions.

Take that, Obama!

Here is that amendment, embodied in the “Declaration of Rights” article in the Wyoming Constitution:

“Article 1, Sec. 38. Right of health care access. (a) Each competent adult shall have the right to make his or her own health care decisions. (emphasis mine) The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person. (b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so. (c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution. ARTICLE 2 — 10 — (d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.”

In this same context, it is important to remember that just a few years prior to the successful adoption of this amendment, there was another attempt to amend our Wyoming constitution to do the exact opposite. A 1994 ballot initiative by the pro-life faction was successful in placing an anti-choice amendment before the voters. The amendment was pretty overwhelmingly defeated, receiving less than 40% of the votes cast.

Taken at face value, it would seem that the legislature passed a law that is in direct contradiction to our constitution. For HB92 to be certified, the language in Article 1, Sec. 38, “ Each competent adult shall have the right to make his or her own health care decisions” must be ignored.

This contradiction will set up a legal donnybrook in our courts that will likely make ultimate resolution of the question of abortion draw out for a year or two as the courts wrestle with the fundamental determination of who has what rights under Wyoming law.

If the decision is motivated by religious dogma, the waffle language in the amendment that permits the legislature to impose “reasonable and necessary restrictions on the rights granted” will be seized upon to modify “Each competent adult…” to exclude pregnant women from making their own health care decisions.

Or pro-life decision makers could simply assert that abortion is not about health care, but is rather all about religion, or water regulation or tax policy…anything but a Wyoming woman making decisions about her own body. I predict that the arguments in the halls of power will become very creative. And ecumenical.

But doing that would obviate the clause in Article 1,Sec.2 which states, “all members of the human race are equal.”

Trigger law or not, don’t expect the question of abortion to be finally decided any time soon. But, when the decision is made, it will be OUR decision and not imposed on us by anyone else.

So, we should take this responsibility very seriously as we will ultimately be deciding who will enjoy full and equal citizenship in the Equality State, just like our Constitution promises.

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Rod Miller

Political Columnist